EPA: the Endangerment Finding was not a “highly influential scientific assessment”

The recent report of the EPA Office of Inspector General(OIG) contains a remarkable dispute between the OIG on the one hand and EPA and the Office of Management and Budget (OMB) on the other as to whether the Technical Support Document (TSD) for the Endangerment Finding was a “highly influential scientific assessment”, a defined category under OMB peer review policy. It would doubtless seem self-evident to most readers that, if any scientific assessment were to meet any criteria of being “highly influential”, the TSD for the Endangerment Finding would meet such criteria.

But readers should never under-estimate the capacity for institutional mendacity. The EPA and OMB have both vigorously argued that the TSD was NOT a “highly influential scientific assessment”. The OIG report includes a fascinating series of appendices in which EPA and OMB gradually articulate this seemingly improbable doctrine – a doctrine rejected by the OIG.

The dispute arises because the EPA peer review procedures did not meet U.S. standards for a “highly influential scientific assessment” – as clearly stated in the recent OIG report. Thus EPA and OMB have resorted to the improbable argument that the Endangerment Finding was not a “highly influential scientific assessment”.

I remind CA readers that the issue of whether EPA peer review procedures complied with federal policies for a “highly influential” scientific assessment (and with related EPA handbook policies) was first raised at CA shortly after the release of the Endangerment Finding – see tag and here. My submission to EPA directly addressed this topic and included a review of relevant authorities.

III. 1. Applicability: This section applies to influential scientific information that the agency or the Administrator determines to be a scientific assessment that:
(i) Could have a potential impact of more than $500 million in any year, or
(ii) Is novel, controversial, or precedent-setting or has significant
interagency interest.

To meet the definition, either of the clauses suffices. It seems unarguable that the Endangerment Finding meets both clauses (i) and (ii). So how did EPA and OMB argue that the TSD for the Endangerment Finding was not a “highly influential scientific assessment”?

OIG Appendix B
The OIG examination of the EPA peer review process was prompted by questions from Inhofe (see Appendix B) which appear to have been submitted in July 2010.

For the record, until the publication of the OIG report, I did not know that Inhofe’s office had submitted any questions to the EPA OIG or that any investigation was taking place. Nor do I know whether Inhofe’s office was aware of the points raised in my 2009 submission or not. If they were, it was through reading Climate Audit rather than direct contact. Nor do I know whether the OIG was aware of my submission on these points. While the report discusses some issues in my submission, other important issues were unaddressed and I therefore presume that they did not consider my submission to EPA, despite it being on point.) Nor had the EPA addressed these issues in their Response to Comments in December 2009 (see here), where my submission had been ignored.

the EPA OIG is currently evaluating EPA’s development of its endangerment and cause or contribute findings for greenhouse gases. Our objective is to determine whether EPA followed key federal and Agency regulations and policies in developing and reviewing the technical data used to support and make its endangerment finding …

Among other questions, they asked:

To what extent should a Federal agency review another organization’s data quality and peer review processes (e.g., document all processes, document and test processes, test selected processes, etc.) before disseminating information from a peer reviewed scientific assessment published by that organization?

If an agency uses another organization’s data or analysis to support their policy, they are disseminating that information. As such, that information becomes subject to the Agency’s Information Quality Guidelines and the Bulletin for Peer Review.

They also stated:

The second step is for the agency to determine whether a specific piece of information is subject to the Bulletin for Peer Review. Not every article cited in a preamble or risk assessment, for instance, is subject to the Bulletin. Only scientific information that is important to the conclusion being drawn by the agency is subject to the Bulletin. For information that is subject to the Bulletin, the agency must either conduct a new peer review of that information or determine that the prior peer review meets the requirements of the Bulletin for either a peer review or alternative process.

The OIG also asked:

Is a document that summarizes the results and conclusions of other peer reviewed scientific assessments, but offers no new analysis or conclusions, considered a scientific assessment according to OMB’s definition?

The OMB responded (reasonably):

An annotated bibliography would generally not be considered a scientific assessment; however, a document summarizing the ‘state of the science’ would be, as it implicitly or explicitly weighs the strength of the available evidence.”

Appendix F – Apr 2011 First OMB Response to Draft Report
In April 2011, the OIG provided the EPA and OMB with its draft report stating that the EPA had not complied with peer review requirements for a “highly influential scientific assessment”. In their April 15, 2011 response, the OMB Deputy General Counsel now argued that the Endangerment Finding was NOT a “scientific assessment” (see Appendix F, page 57):

With respect to the relationship between the Endangerment TSD and OMB’s Bulletin, the threshold question is whether EPA should have determined that the TSD met the definition of a “highly influential scientific assessment.” If so, the Endangerment TSD would have been subject to the stricter minimum requirements for peer review contained in Section III of the OMB Bulletin.

OMB believes that EPA reasonably determined that the Endangerment TSD itself (as opposed to the underlying peer-reviewed scientific assessments of the NRC, IPCC, USGRCP identified and discussed in the TSD) did not have the impacts or characteristics required to meet the OMB Bulletin’s definition of a highly influential scientific assessment.

If the document does not meet the definition of a “highly influential scientific assessment,” but meets the definition of “influential scientific information,” then it is subject to more discretionary requirements contained in Section II of the OMB Bulletin. OMB believes that the EPA complied with those requirements.

Already one can see the development of a fictional account of the EPA deliberation process. There is no evidence that, at the time, EPA had consciously made a decision that the Endangerment Finding was merely “influential scientific information” as opposed to a “highly influential scientific assessment”. Had there been such a decision, it would have been recorded in contemporary documents and it isn’t.

Appendix G – Jun 2011 EPA Response to Draft Report
On June 11, 2011, the EPA provided its own justification (see Appendix G – Agency Comments on Draft Report and OIG Evaluation of Agency Comments) which is accompanied by inline OIG comments in blue boxes. They also argued that the TSD was not a “scientific assessment” e.g. as follows:

A “scientific assessment” (a prerequisite for being a HISA [highly influential scientific assessment]) is defined in OMB’s Peer Review Bulletin as “an evaluation of a body of scientific or technical knowledge, which typically synthesizes multiple factual inputs, data, models, assumptions, and/or applies best professional judgment to bridge uncertainties in the available information.” The TSD did not conduct such an evaluation. No weighing of information, data and studies occurred in the TSD. That had already occurred in the underlying assessments, where the scientific synthesis occurred and where the state of the science was assessed. The TSD is not a scientific assessment, but rather summarized in a straightforward manner the key findings of the NRC, the USGCRP and IPCC. EPA is confident that a comprehensive review of this issue leads to the conclusion that the TSD is not a HISA, but rather ISI.

As to whether IPCC peer review procedures met EPA standards, EPA merely observed that the peer review processes of IPCC are “well known and accepted” by the U.S. government. In their inline response, the OIG observed that “the only organization for which OMB guidance specifically allows federal agencies to presume findings and conclusions to be adequately peer reviewed is NAS”.

All of Appendix G merits reading in full.

Appendix H – Jun 2011 OMB Response to Draft Report
On June 17, 2011, concurrent with the EPA response (Appendix G), the OMB submitted its formal comments on the draft report (Appendix H – OMB Comments on Draft Report and OIG Evaluation of OMB Comments), again with OIG comments in blue boxes. This letter contained the cutphrase later excerpted by EPA in its responding press release:

OMB believes that EPA reasonably interpreted the OMB Bulletin in concluding that the particular TSD that EPA prepared in this case did not meet the Bulletin’s definition of a “highly influential scientific assessment”:

The letter contains remarkable contortions trying to reconcile the Sept 10 OMB Response requiring (Section III) peer review with their present position that the TSD was not a “scientific assessment”.

They argued that the predecessor reports by IPCC and others were the “scientific assessments”:

Section 1(7) of the OMB Bulletin defines a “scientific assessment” as “an evaluation of a body of scientific or technical knowledge,” including “state-of-science reports.” In this case, EPA concluded that it was the separate, pre-existing and peer-reviewed assessments by IPCC, USGCRP, and NRC that constituted such evaluations of the state of the science.

…rather than requiring interested persons to read the entirety of these lengthy assessments – EPA included in the TSD a reader-friendly version of those passages (from those pre-existing peer-reviewed assessments) on which EPA was relying for making its determination.

The TSD accompanying EPA’s decision provided a condensed form of the three underlying peer- reviewed assessments and, with respect to the key conclusions in the Endangerment Finding, the TSD is in many respects simply a word-for-word transcription of the summary conclusions that are contained in those peer-reviewed assessments.

The OIG sensibly rejected these arguments and adhered to the obvious position that, the TSD was a “scientific assessment”:

However, in synthesizing the findings, conclusions, and other information from these assessment reports (and other sources) in its TSD, EPA was evaluating the state of science and producing an entirely new and separate document that also met OMB’s definition of a “scientific assessment.”

They rejected the idea that the TSD was simply a “reader friendly version” of the earlier assessments:

Nowhere in the TSD does it state that the purpose of the document is to “provide a reader friendly version” of the underlying assessments.

The OIG stated:

EPA classified its endangerment and cause or contribute findings for greenhouse gases as a Tier 1, significant regulatory action because it raises novel policy issues. The TSD provided scientific and technical information to support that action. For that reason, and because the TSD synthesizes information from multiple sources (beyond just those of the USGCRP, IPCC, and NRC assessments), the TSD itself should be considered a highly influential scientific assessment, subject to the applicable OMB peer review requirements for that type of information.

The OIG also observed that EPA did not take the position that the TSD was merely “influential scientic information” during the review process itself, but first advanced this argument (opportunistically) in response to the OIG review:

EPA did not characterize the TSD as influential scientific information (or as a highly influential scientific assessment) during the action development process. EPA first characterized the TSD as influential scientific information in response to our draft report.

News Releases
The OIG report was issued on Sept 28, 2011. In its press release, EPA took comfort in OMB support for the seemingly improbably claim that the TSD was not a “highly influential” scientific assessment:

OMB in response to our draft report stated that OMB believes that EPA reasonably interpreted the OMB bulletin in concluding that the TSD did not meet the bulletin’s definition of a highly influential scientific assessment.

The reaction of the climate scientists (as quoted by Pielke Jr) were that EPA’s failure to comply with its procedures for a highly influential scientific assessment didn’t matter, because the “science” was right.

On the other hand, it seems to me that this can hardly be the end of the story in legal terms, as there must surely be legal ramifications to EPA’s present argument that they did not observe required peer review protocols because they had decided that the TSD was not a “highly influential scientific assessment”.

As I’ve observed in the past (and specifically in connection with my own EPA submission), in Canada, there would not be an equivalently tortuous regulatory process. I do not contest the right of governments to make decisions on these matters. I do object to what I described in my original post as “the implicit laundering of past stonewalling and obstruction” by IPCC authors in respect to data and methods and to structural defects in the IPCC review process. This criticism was written six months before Climategate provided further confirmation of the tainted IPCC review process. (In respect to the issue that particularly concerned me, the assessment of the Hockey Stick dispute, the Climategate emails e.g. the surreptitious Wahl-Briffa exchange of summer 2006 that Jones asked to delete, that the IPCC review process did not meet EPA standards.

As I’ve observed in the past, rather than breaching important policies and then arguing that the breaches don’t “matter”, climate scientists should ensure that all processes, including IPCC, are truly open and transparent. If this is necessary to comply with EPA standards, that’s simply one more reason for something that should be done anyway.

If EPA were to carry out a highly influential scientific assessment on its own, then proponents would have to turn over data and methods. IPCC does not have corresponding requirements. Indeed, they threatened to expel me as an AR$ reviewer for asking for data. The pernicious practice of data withholding continues (as in the ongoing FOI requests to CRU for the secret Yamal/Urals regional chronology.)

IPCC should ensure that its policies to remove every possible non-compliance with EPA standards. Their failure to implement the conflict of interest policy for AR5 is a mistake.

51 Comments

EPA is washing its hands by claiming its report wasn’t a HISA. All responsibilities are passed to the IPCC and the others organizations. This means that future hearings about EPA and climate change will have to be conducted with the participation of IPCC representatives, given the apparent lack of ultimative scientific weight in what EPA has to say on climate change. We could thereafter discuss if EPA is qualified to devise or implement any climate-related actions and recommendations, once again due to its inability to produce a HISA report.

snip – distracting and there are narrower issues to consider first

Steve: it’s not that EPA is “unable” to comply with HISA standards, just that they and IPCC have not done so. Logically, IPCC and EPA should carefully examine their procedures to make them as HISA-compliant as possible and identify points, if any, where they cannot.

I think when you check its teeth, the EPA (US) is using the IPCC (UN) as a source to deflect responsibility. They seem to reason that since the IPCC is not a US body, that the EPA is excused from applying US standards as set out in the Federal Register to IPCC-sourced information. Since the the information upon which the EPA acted came from a technically non-US source (the IPCC), the EPA is excused from evaluating it independently. We then see a governmental body – the EPA – making regulatory decisions effectively at the direction of an NGO (the WWF in fact).

I have seen a commentary pointing out a trend for agencies making rules in the past few years to try to skip the required public comment and review procedures (which were put in place as a safeguard). One tactic is to deny that they are rules by calling them “interim” rules. Another is to simply call them guidance rather than rules (the new Title IX letter from dept of Educ to universities does this) but to nevertheless enforce them. Sometimes there is simply a blatant skipping of the public comment process. In this, EPA skipped the critical assessment of the science underpinning their rule making AND rushed the public comment period to minimize it.
After all, this public comment/review stuff is so pesky and tedious for nice beauracrats simply doing their jobs…it suggests they could make mistakes or have an agenda…and how could that be?

Steve: be careful that you don’t project other issues onto this set of facts. There may or may not be other issues in respect to how EPA deals with public comments. In this case, the OIG reported that EPA provided proper notice for public comments. The point here is compliance with HISA requirements on peer review, which is different.

It is a critical point that EPA is not allowed to simply accept other reports without evaluation except from NAS. Even if they “like” them.

Near the end of the post, best typo ever “AR$”

Steve – they have the alternative of demonstrating that the peer review process used in the other report e.g. IPCC met EPA standards. In my earlier posts and my submission, I argued that IPCC review does not meet EPA standards in important respects – notwithstanding much armwaving by the “community”.

Yes, that is what I meant by “without evaluation”–they can accept a document if it meets their data quality standards–but these are quite high since they are based on toxicology type studies. And they must demonstrate that the document in question meets their standards.

Case in point: hiring. When a government agency hires, there are manuals and forms and procedures and criteria to have to follow. But the boss’s fishing buddy or son in law always ends up being the “most qualified applicant”.

I’m curious: if the TSD was not “highly influential,” then what was, or rather, what document(s) were the source of the endangerment finding in the first place if not the technical documents used as reference?

They relied heavily on the IPCC reports but are supposed to assess the adequacy of quality control, statistics, etc in any report they rely on. It does not say in the regs that they get a pass if 2500 scientists agree…heh

They told the OIG that the TSD was simply a “reader friendly version” of the IPCC and related prior reports and that “no weighing of information, data, and studies occurred in the TSD”.

However, in their Denial of Petitions for Reconsideration, 75 Fed. Reg. 49,556, 49, 581 (Aug. 13,2010, they stated the exact opposite:

EPA did not passively and uncritically accept a scientific judgment and finding of endangerment supplied to it by outsiders. Instead, EPA evaluated all of the scientific information before it, determined the current state of the science on greenhouse gases, the extent to which they cause climate change, how climate change can impact public health and public welfare, and the degree of scientific consensus on this science. EPA applied this science to the legal criteria for determining endangerment, i.e., whether greenhouses gases cause, or contribute to, air pollution that may reasonably be anticipated to endanger public health or welfare .… EPA properly and carefully exercised its own judgment in all matters related to the Endangerment Finding.

Hard to contemplate more contradictory positions. I wonder where this will lead.

Lawsuits … And possibly the reluctant acceptance on the part of EPA’s lawyers and EPA’s senior administrative staff that they must read and follow their own processes and procedures; and in addition, they must also be cognizant of what it was they’ve said previously before throwing out yet another series of explanations designed to evade accountability for their actions.

EPA to petitioners: “EPA evaluated all of the scientific information before it, determined the current state of the science on greenhouse gases…and the degree of scientific consensus” EPA to Inspector General: “[EPA] did not conduct such an evaluation [synthesizing, applying judgment]. No weighing of information, data and studies occurred in the TSD.”

They either lied to the OIG or to the petitioners; either way it’s a catastrophe for them. Though I bet the Administration suspends the rulemaking process before the court cases begin, and to pre-empt hearings.

Not if Issa or Inhofe have anything to do with it. The only unfortunate thing is that Issa’s up to his eyeballs in scandals to investigate, and there aren’t enough hours in a day. Gunrunner is a bigger deal, and this EPA stuff may fly under the radar just because there’s so much else going on.

It appears no matter which way they jump, it will be out of the frying pan and into the fire. In that several states have sued the EPA, it matters little if Inhofe or others are involved, or not. Texas is one of the states. They also sued about the EF or the finding of harm. IIRC about the only way to get an EF or finding of harm thrown out, is if the Agency or agent did not follow the procedures. In cases where there is disagreement, the agent or agency only has to show they followed their procedure for determination. And some procedures must be followed, or the finding cannot be certified, or accepted.

Interesting take. Taken literally, it’s hard to see how EPA did not make a misrepresentation or deception in one document or the other. It’s hard to see why EPA officials should be exempt from laws applying to Barry Bonds or Martha Stewart. I’m sure that this is not the end of this story.

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

Would the claim of a procedure, a determination, or a legal requirement be a material fact in an inspection? How could such a report in the Federal Register as was the EF and the denial, not be a material fact subject to questioning by an inspector?

It ian’t and EPA assessment; it came from someone else whom the EPA treated as “authoritative.” The problem though is that even if the EPA did conduct an assessment of the science, who would they consult: NASA, NOAA, University of Colorado, Pennsylvania State?

The problem is, by law the EPA must base all of its findings on EPA assessments, or show that the assessment it used met all of the EPA standards for such things. There is no easy way out of the corner they have painted themselves into.

Their failure to implement the conflict of interest policy for AR5 is a mistake.

Their failure to implement the conflict if interest policy is an important element is disqualifing IPCC as a primary source. Even if EPA could establish that the IPCC Peer Review process met the criteria of the Information Quality Guidelines and the Bulletin for Peer Review, IPCC failure to implement a conflict of interest policy would disqualify them. Whereas the peer review standard might be an agument of degrees, the conflict of interest policy is black and white.

This kind of issue is poorly served by law courts.
Cases can go either way on a technicality. IF the result is too unpopular there is a fudge to take the heat out of the thing eg non-enforcement. In the longer term, the courts align to public expectation.

The spirit of the age is now, the economy not the plante is the priority. Which is why in the UK
Chancellor George Osborne has said that “Britain will not cut carbon emissions faster than other EU countries.”
Whatever happens in any court case, folks who prioritise performing on Green issues over jobs are not going to be elected in a recession.

Congratulations to you and Senator Inhofe (and whoever on his staff got this pushed through). This seems about as subtle and yet as big as govt mendacity gets. I recently this spring attended a mining water conference in Vegas and heard a featured speaker, an EPA head, describe, as matter of factly as one could imagine, that all of the science was settled and that they were moving forward with their regulatory powers full steam ahead. No one questioned her, not even me.
But if I had this piece of news in my hip pocket, I would have gladly raised my arm then.

When it eventually goes before the US Supreme Court – or Court of Appeals (which it probably will?), the EPA will win on the Chevron defense.

“[I]f the statute is silent or ambiguous with respect to the specific question, the issue for the court is whether the agency’s answer is based on a permissible construction of the statute.” Chevron U.S.A. v. NRDC, 467 U.S. 837, 842–843 (1984).”

What matters is not the procedures followed, but whether their conclusion is reasonably “permissble” under the statute. i.e. does the conclusion speak to language of the statue, rather than is the conclusion valid? The government agency is assumed competent unless they are using the statue in an “imperissable” way.

I don’t think so. One of the most important lessons you learn when you work for a Federal agency writing regulations is “the process is your friend”. When you follow “the process”, meaning a defined process that has been previously reviewed and approved and not challenged, you acquire a mantle of protection for the result. When you go outside the process, you open up the mantle of protection for the lawyers to shoot at you. Environmentalists have been using this ever since the NRC/Calvert Cliffs decision.

By and large, most of the arguments laid out by these Petitioners echo previous arguments made directly to the EPA during the various public comment opportunities as the EPA was considering whether or not greenhouse gases endangered public health and welfare—a finding which would then open the door for the EPA to develop regulations to restrict the emissions of greenhouse gases.

Despite copious cogent arguments as to why the EPA should not find that greenhouse gases engager the public health and welfare, the EPA not only made such a finding, but denied all petitions to reconsider its findings that were submitted as revelations of scientific misconduct (some of which directly should have come to bear on the reliability of background science relied on by the EPA) came to light with the release of the Climategate emails.

So how did EPA and OMB argue that the TSD for the Endangerment Finding was not a “highly influential scientific assessment”?

My guess would be that they’ve received visitations from those who reside on the planet on which a trick is not a trick, decline is not decline – and “peer review” can be re-defined. ‘t would be a mere hop, skip, and a jump to redefine “highly influential scientific assessment”, would it not?!

How can the EPA claim that the IPCC peer review process is sufficient?

The IPCC doesn’t have a peer review process. It has quality controls that state that, when possible, peer reviewed literature is preferred. Under some circumstances, non-reviewed literature is acceptable.

The IPCC relies on the individual peer review processes of the hundreds of journals that publish the work that they compile.

The EPA would have to prove that each one of the publishing journals had an acceptable process or prove that the IPCC had done so.

“In response to allegations that CRU scientists acted inappropriately in handling their data and improperly influenced the process of advising policymakers, the University of East Anglia commissioned two studies. An April 2010 study, chaired by Professor Ron Oxburgh, examined the integrity of the research published by CRU. A July 2010 study, chaired by Sir Muir Russell, examined the conduct of the CRU scientists. In general, the studies found that there was no deliberative scientific malpractice at CRU, and that there was no evidence of CRU scientists’ behavior that would undermine the conclusions of the IPCC assessments.”

They generally accepted the report conclusions at face value, unaware of any controversy concerning them. Apparently no CA readers among them.

EPA is a bureaucracy. Different attorneys can handle different tasks. They might try to do so honestly, but the net result may be confusion.
Lawyers must rely on staff “scientists” and engineers, who know jargon and some knowledge, but not geniuses. It would not be easy to maintain a coherent defense against intelligent questions.
The Agency is headed by people committed to attacking the peril of global warming. They follow the Hockey Team. What are employees to do? Dr. Alan Carlin went public, to his credit.
As long as the Congress was controlled by Democrats, no questions would be asked. But with the political pendulum swinging,there must be a lot of poor thinking that could be investigated and brought to light.

Email # 3: March 17 email from Mr. McGartland to Mr. Carlin, stating that he will not forward Mr. Carlin’s study.

“The time for such discussion of fundamental issues has passed for this round. The administrator and the administration has decided to move forward on endangerment, and your comments do not help the legal or policy case for this decision.
…. I can only see one impact of your comments given where we are in the process, and that would be a very negative impact on our office.”

I new something was up when the EPA anounced its endangerment finding only a day or two before the international conference.It was all too convienient,and I will never forget it. Why did I feel like I was the only one who could smell a rat, and why did this take so long to be investigated?

Page 26 (Opinion): The statutory text forecloses EPA’s reading. The Clean Air Act’s sweeping definition of “air pollutant” includes “any air pollution agent or combination of such agents, including any physical, chemical . . . substance or matter which is emitted into or otherwise enters the ambient air . . . .” §7602(g) (emphasis added).

On its face, the definition embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word “any.”[25] Carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are without a doubt “physical [and] chemical . . . substance[s] which [are] emitted into . . . the ambient air.” The statute is unambiguous.

And:

SCALIA, J. (Dissenting, Page 10 footnote 2): Not only is EPA’s interpretation reasonable, it is far more plausible than the Court’s alternative. As the Court correctly points out, “all airborne compounds of whatever stripe,” ante, at 26, would qualify as “physical, chemical, . . . substance[s] or matter which [are] emitted into or otherwise ente[r] the ambient air,” 42 U. S. C. §7602(g). It follows that everything airborne, from Frisbees to flatulence, qualifies as an “air pollutant.” This reading of the statute defies common sense.

The Endangered Species act is similar. It protects small fish and subspecies of owl. Congress ignores a characteristic of bureaucracies: expand.